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July 5, 2011

MSRB Warns Municipal Advisors to Register With Itself or SEC

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Updating Form ADV and Form U4
When it comes to disclosure on Form ADV, RIAs should assume information would be material to investors. When in doubt, RIAs should disclose information rather than arguing later with securities regulators that it was not material.

Client Communication and Miscommunication
RIA policies and procedures must specify what type of communications should be retained. The safest course of action is for RIAs to retain all communicationsto clients, from clients, and about client accounts. To comply with fiduciary obligations, communications must be thorough and not mislead.

The Municipal Securities Rulemaking Board (MSRB) sent a notice on July 5 stating it had become aware of firms engaging in municipal advisory activities without being registered with the Securities and Exchange Commission (SEC) or MSRB—which is a violation of the Exchange Act and rules of both agencies.

The notice warns municipal advisors that if MSRB receives information indicating violations of these registration requirements, it “intends to refer the matter to the appropriate regulatory authority for investigation and possible enforcement action.”

“It has come to our attention that some municipal advisors are providing municipal advisory services without first registering with the SEC and MSRB, as required by law,” said MSRB Executive Director Lynnette Kelly Hotchkiss, in a statement. “The MSRB is concerned that these firms may not be aware of their legal obligations, including the federally established fiduciary duty owed their municipal entity clients” under the Dodd-Frank Act.

The MSRB notice says that “unregistered municipal advisory firms may be unaware that they--and individuals associated with them--owe a federal fiduciary duty to municipal entity clients for whom they provide municipal advisory services.” The notice goes on to state that municipal entities and obligated persons that retain municipal advisor firms to verify their registration status with the MSRB and the SEC.

Firms engaged in municipal advisory activities were required to be registered with the MSRB as of Dec. 31, 2010, as a result of the MSRB’s expanded regulatory authority over municipal advisors established by Dodd-Frank. Prior to registering with the MSRB, municipal advisors must register with the SEC. In addition, the notice states that brokers, dealers and municipal securities dealers that also act as municipal advisors are required to register with both regulators as municipal advisors even if they previously registered with the MSRB as dealers.

Municipal advisors are awaiting clarity from the SEC on who is a municipal advisor. While the Dodd-Frank Act required municipal advisors to register with the SEC by October 2010, the agency created a temporary registry. The SEC is now proposing rules that would establish a permanent registry for municipal advisors and impose certain record-keeping requirements on them, including the agency’s pay-to-play rule. The comment period on that permanent rule expired Feb. 22.

The SEC received nearly 800 comment letters stating that the rule was “too broad” in defining who is a municipal advisor, Lynette Kelly Hotchkiss told AdvisorOne. “The SEC has until the end of the year to give clarity on who is a municipal advisor,” Hotchkiss says. “There are people who are clearly municipal advisors—about 700 advisors have been registered with MSRB already since Dodd-Frank. There’s a lot of gray area—some are clearly municipal advisors and some are clearly not.”